State ex rel. DeWine v. Buckeye Impact Group, L.L.C. , 2018 Ohio 4578 ( 2018 )

[Cite as State ex rel. DeWine v. Buckeye Impact Group, L.L.C., 2018-Ohio-4578.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
SANDUSKY COUNTY
__________________________________________________________________
STATE OF OHIO EX REL.,
OHIO ATTORNEY GENERAL, CASE NO. S-18-001
MICHAEL DEWINE,
PLAINTIFF-APPELLEE,
v.
OPINION
BUCKEYE IMPACT GROUP, LLC, ET AL.,
DEFENDANTS-APPELLANTS.
__________________________________________________________________
Appeal from Sandusky County Common Pleas Court
Trial Court No. 17-CV-17
Judgment Affirmed
Date of Decision: November 13, 2018
APPEARANCES:
Andrew R. Mayle for Appellants
Megan E. McNulty for Appellee
Case No. S-18-001
WILLAMOWSKI, P.J.
{¶1} Defendants-appellants Buckeye Impact Group, LLC and Premier
Design Group, LLC (collectively “the appellants”) appeal the judgment of the
Sandusky County Court of Common Pleas. For the reasons set forth below, the
judgment of the trial court is affirmed.
Facts and Procedural History
{¶2} On January 6, 2017, the Attorney General’s Office filed a complaint
against the appellants that alleged violations of the Consumer Sales Practices Act.
Doc. 2. On July 14, 2017, the Attorney General’s Office served the appellants with
interrogatories and requests for the production of documents. Doc. 14. The
Attorney General’s Office then filed a motion to compel discovery on November 9,
2017. Doc. 15. In response, the appellants asserted that an order compelling
production of these documents and answers to the interrogatories would violate their
constitutionally protected right against self-incrimination. Doc. 19. On December
22, 2017, the trial court ordered the appellants to comply with the discovery
demands. Doc. 22.
Assignment of Error
{¶3} Appellants filed notice of appeal on January 18, 2018. Doc. 25. On
appeal, appellants raise the following assignment of error:
The trial court erred in compelling two limited liability companies
to respond to discovery requests propounded by the attorney
general in a lawsuit brought under R.C. 109.87 when (1) the
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requests are designed to elicit potentially incriminating responses
and therefore (2) no individual affiliated with the companies are
willing to craft or verify any discovery responses because of the
potential for self-incrimination that could be used in a subsequent
criminal case.
Legal Standard
{¶4} Under the Fifth Amendment to the United States Constitution, “No
person * * * shall be compelled in any criminal case to be a witness against himself.”
Fifth Amendment to the U.S. Constitution. See Ohio Constitution, Article I, Section
10. “A valid assertion [of the right against self-incrimination] exists where a witness
has reasonable cause to apprehend a real danger of incrimination.” State v.
Landrum, 53 Ohio St. 3d 107, 119, 559 N.E.2d 710 (1990). The right against self-
incrimination
can be claimed in any proceeding, be it criminal or civil,
administrative or judicial, investigatory or adjudicatory. * * * [I]t
protects any disclosures which the witness may reasonably
apprehend could be used in a criminal prosecution or which could
lead to other evidence that might be so used.
In re Amanda W., 124 Ohio St. 3d 136, 140, 705 N.E.2d 724 (6th Dist. 1997), quoting
Application of Gault, 387 U.S. 1, 47-48, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (1967).
{¶5} However, the right
against self-incrimination may not be invoked merely by asserting
that the information sought by the government may in a general
sense be incriminatory. Whether there is a sufficient hazard of
incrimination is a question for the [trial] court * * *.”
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Cincinnati v. Bawtenheimer, 63 Ohio St. 3d 260, 266, 586 N.E.2d 1065 (1992).
Thus, “[t]he trial court must have more than a blanket assertion.” Matter of Rebecca
S., 6th Dist. Lucas No. L-96-377, 1997 WL 679518, *4 (Oct. 31, 1997). “A blanket
assertion of the privilege is not sufficient to show reasonable cause to apprehend a
real danger of incrimination, and the privilege cannot be claimed in advance of the
questions. The privilege must be asserted as to particular questions.” Id., citing In
re Morganroth, 718 F.2d 161, 167 (6th Cir. 1983).
{¶6} The Ohio Rules of Civil Procedure state the method by which
objections may be made to interrogatories and the production of documents. See
McPherson v. Goodyear Tire & Rubber Co., 146 Ohio App. 3d 441, 444, 766 N.E.2d
1015 (9th Dist. 2001). Civ.R. 33(A)(3) reads, in its relevant part, as follows:
Each interrogatory shall be answered separately and fully in
writing under oath, unless it is objected to, in which event the
reasons for objection shall be stated in lieu of an answer. The
party upon whom the interrogatories have been served shall quote
each interrogatory immediately preceding the corresponding
answer or objection. * * * The answers are to be signed by the
person making them, and the objections signed by the attorney
making them.
Civ.R. 33(A)(3). Civ.R. 34(B)(1) reads, in its relevant part, as follows:
The party upon whom the request is served shall serve a written
response within a period designated in the request that is not less
than twenty-eight days after the service of the request or within a
shorter or longer time as the court may allow. With respect to
each item or category, the response shall state that inspection and
related activities will be permitted as requested, unless it is
objected to, including an objection to the requested form or forms
for producing electronically stored information, in which event
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the reasons for objection shall be stated. If objection is made to
part of an item or category, the part shall be specified.
Civ.R. 34(B)(1).
Legal Analysis
{¶7} In response to the Attorney General’s discovery requests, the appellants
made a general argument that limited liability companies have a right against self-
incrimination under the Fifth Amendment. Based on this argument, the appellants
made a blanket assertion of their right against self-incrimination but did not respond
to any of the particular interrogatories or document requests with specific objections
or answers. Thus, the appellants did not properly invoke the right against self-
incrimination on a question-by-question basis. See Sojic v. Karp, 2d Dist.
Montgomery No. 26664, 2015-Ohio-3692, 41 N.E.3d 888, ¶ 31; Muehrcke v.
Housel, 8th Dist. Cuyahoga Nos. 85643, 85644, 2005-Ohio-5440, ¶ 20; Tedeschi v.
Grover, 39 Ohio App. 3d 109, 110, 529 N.E.2d 480 (10th Dist. 1988); In Matter of
Zahler, 11th Dist. Lake No. 94-L-091, 1995 WL 411790, *3 (June 23, 1995).
Further, in so doing, the appellants did not respond in accordance with Civ.R.
33(A)(3) or Civ.R. 34(B)(1). Since the right against self-incrimination was not
properly invoked before the trial court, the question of whether a limited liability
company can invoke the right of self-incrimination need not be addressed. The
appellants’ first assignment of error is overruled.
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Conclusion
{¶8} Having found no error prejudicial to the appellants in the particulars
assigned and argued, the judgment of the Sandusky County Court of Common Pleas
is affirmed.
Judgment Affirmed
ZIMMERMAN and SHAW, J.J., concur.
/hls
Judges John R. Willamowski, William R. Zimmerman and Stephen R. Shaw, from
the Third District Court of Appeals, sitting by assignment of the Chief Justice of the
Supreme Court of Ohio.
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